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4.45 pm

Lord Rosser: My Lords, I fear that this is getting somewhat repetitive, but it is a fact that, when courts make decisions and have to set down the purpose of the penalty that they are proposing, an issue can be about punishing the offender as well as the other things to which the subsection refers. We cannot get away from that fact.

The Lord Bishop of Liverpool: My Lords, I support the amendment. I should say at the outset that I am not squeamish about the word “punishment” either philosophically or theologically I believe in just

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deserts and in the exercise of punishment for the good of the offender as well as for the good of society.

I support the amendment because some years ago the Audit Commission brought out a report, Misspent Youth, which analysed the different ways in which a young offender could be rehabilitated in society. It came to the conclusion, which may not be surprising to your Lordships, but which was a point worth making and needs repeating, that the single most effective thing in restoring a young offender was for that young person to encounter an adult who believed in them. In my own work and ministry, I have seen that time and again, especially in the inner city. When young offenders meet an adult who believes in them, that becomes the path to restoration.

The amendment is important because it points out the role of the new probation trusts in providing offenders with people who believe in them. Words in the end are important. I repeat that punishment is important—it is at the heart of the Bill—but, when describing the services of the probation trust and the people who work there, we need to emphasise the need to recruit people who believe in the potential of an offender to repent, to be restored and to be rehabilitated. Frankly, I worry about the sort of people who might be attracted to work for probation trusts because they see “proper punishment of offenders” as one of the five things that they are meant to do. That worries me and it is why I support the noble Lord’s amendment.

Lord Warner: My Lords, I, too, think that words are important. It is important that we also have regard to the fact that this amendment relates to a clause in the Bill that is meant to shape the issues that the Secretary of State should have regard to in terms of probation purposes.

It is difficult to counter many of the arguments that my noble friend Lord Rosser set out so clearly. I am genuinely puzzled about the amendment and why so many noble Lords are apprehensive about the word “punishment”. In my five years as chairman of the Youth Justice Board for England and Wales, I spent a lot of time thinking about and discussing the issue of punishment and its contribution to changing behaviour and—this is also worth bearing in mind—how victims viewed punishment as part of the process of change.

“Punishment” is certainly a word that enters into conversations between staff and offenders, whether they are young or old; we delude ourselves if we think that it is not. The dictionary meaning of the word encourages one to be a little less squeamish about it. The term embraces several concepts in the Oxford English Dictionary. My recollection is that the courts themselves tend to use dictionary meanings of words in their interpretation of the law. One concept of punishment is,

so there is some sense of paying back. Many of my conversations with victims and their families strongly suggest that there is some expectation of offenders facing consequences for their behaviour and making some kind of retribution or payback. That is often

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explicit in court orders and is part of the conversation that probation and youth offending team staff have with offenders.

A second concept in the definition of the word—again, I turn to the Oxford English Dictionary—is an,

If that is not about rehabilitation and changing behaviour, I am not sure what is. I think that we all agree that the management of offenders should have trying to change behaviour at its heart, but that is an integral concept within the term “punishment”, too, as I have tried to show.

The Government seem to have the words right in the Bill. The words “proper punishment” reflect an appropriate aim that the Secretary of State should have regard to. That is a more constructive aim than simply being an enforcer of a court order. The amendment would weaken, not strengthen, the role of probation staff, and the House would be wise not to go down that route.

Baroness Warnock: My Lords, I must rise to support the amendment. There is nothing more dreadful to a philosopher than to hear people say, “It’s just a word”. The word’s connotation is enormously important. The main point made by my noble friend Lord Ramsbotham is that there is an important distinction between issuing an order that someone be punished and ensuring that that punishment is properly carried out. The one is the role only of the courts; the other is a crucial element in the role of the probation officer.

To overlook the ceremonial aspect of the word “punish”—or “make an order”—is to confuse the role of the probation officer with that of the judge, magistrate or court as a whole, who have the authority to issue a punishment. The probation officer, on the other hand, is being given the authority to ensure that that punishment is carried out. We need to bear that distinction in mind. It is enormously important both for the probation officer himself, as my noble friend Lady Stern has said, and for the criminal that they should understand the difference between the official issuing of the order and the person who is, perhaps to the sorrow of the criminal, ensuring that that order is carried out. That is a huge difference. Although the amendment obviously turns on one word, it is very important indeed.

Lord Wallace of Saltaire: My Lords, I strongly support that last contribution. Courts punish and their agents enforce the orders that the courts have given. We are asking for a probation service, or providers of probation, to enforce those orders. I understand, having heard the speeches of the noble Lords, Lord Rosser and Lord Warner, that there is an underlying sense that they want to ensure that people do not think that non-custodial sentences are an easy option and therefore want the word “punishment” to be attached as closely as possible. We now have

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community punishment orders, which are part of the way in which the Government are trying to get that message across. We will come back on a later amendment to the question of who is responsible for punishment and how it is carried out. It is a very important distinction in the role of the state and of those actors, public or private, who carry out the orders of the state. The Bill is intended to enable private actors to carry out some of those orders, but not, I suggest, to allow private actors to punish on behalf of the state, which would be improper. That is an important distinction, which we should not cross.

When I read the Carter report, I understood that part of the problem of our currently overcrowded prisons was the failure to enforce fines. That seems to have been lost in all this. Part of what we are trying to do with the Bill is to provide non-custodial ways of enforcing court decisions. Reduction of offending should be a major part of this, and rehabilitation has to be part of that. Therefore, it seems to me that the language matters a great deal. The instructions that we are giving to the providers of probation are to enforce the decision and to promote rehabilitation; they are not to be the punishers.

Lord Slynn of Hadley: My Lords, I do not regard this amendment as simply raising a question of semantics or linguistics. It carries within it a very important question of principle as to the relative functions of the courts and the Probation Service. The distinction between punishment and enforcement of court orders is very real. That should not be overlooked. Subject to that, I wholly agree with the points made by the noble Lord, Lord Ramsbotham, so I will not repeat them or risk spoiling them by paraphrasing them. I well understand the point made by the noble Lord, Lord Judd, that there is a difference between enforcement and implementation. But if one is better than the other, I believe that it is only by a whisker. I am perfectly content to go along with the word proposed in the amendment, which I support.

Baroness Carnegy of Lour: My Lords, I have listened to the discussion with great interest. The amendment has been discussed largely as though Clause 2(4) is a brief for probation officers. It is not. The wording of the Bill—I hesitate to say so after a very eminent retired Law Lord has spoken—indicates, as I think the noble Lord, Lord Warner, said, that this is a list of what the Secretary of State must have regard to when implementing the earlier part of Clause 2. He has to see to it that the arrangements that he makes for the Probation Service enable the proper punishment of offenders. That does not mean that probation officers are the punishers, but the arrangements in the clause add up to, among other things, the proper punishment of offenders. I shall listen to the reply to the Front Bench very carefully. I hope that when the noble Lord, Lord Ramsbotham, replies, he will justify what he said in that context—it is about the aims of the Secretary of State in implementing Clause 2, if I understand the clause correctly.

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Baroness Anelay of St Johns: My Lords, the amendment of the noble Lord, Lord Ramsbotham, would change the drafting of subsection (4). That subsection was inserted into the Bill in another place at the request of my right honourable and honourable friends, and it repeats the drafting of a section in the first NOMS Bill, if we can call it that, which was published in January 2005.

I do not intend to return to the detail of the arguments that I put in Committee, as that would be improper now that we are on Report, but I argued for the retention of the phraseology in the Bill as drafted. I accept of course that whatever one inserts into the Bill in the way of a list of aims or principles, as happens in subsection (4), there is bound to be a debate around the precise content of that list. That is something that the Opposition always like to do, much to the disbenefit of the Government, but it is a healthy way to hold the Government to account. It may be irritating to the Government, but it is what opposition is about—trying to get at what is underneath the drafting of the Bill.

It has been important to have the debate again today. I have to say that I am unable to support the amendment of the noble Lord, Lord Ramsbotham, for the simple reason that, as the noble Baroness, Lady Scotland, was very quick to point out in Committee, my honourable friend Mr Edward Garnier accepted the drafting of subsection (4) as it is in the context of Clause 2 on Report in another place. He said that,

he goes a bit far, does he not?—

We assented then; we do not dissent now. If the noble Lord, Lord Ramsbotham, were minded to press the matter to a Division today, I should have to invite my noble friends to abstain.

5 pm

Lord Bassam of Brighton: My Lords, the amendment has enabled the House to have a full discussion of the role of probation in ensuring the proper punishment of offenders. I listened with very great interest to the debate, which, as has been said, we have had before and at length. However, it falls to me to set out again the reasons why we cannot accept the amendment. I fully understand the spirit in which it has been moved and the purpose behind the debate. There was fair reflection from all sides of the House that one of the purposes of probation work is to ensure the effective carrying out of sentences and that those sentences rightly include punishment.

As noble Lords will recall, the probation aims were added to the Bill, as the noble Baroness, Lady Anelay, said, in response to requests made in Committee in another place. She was right to say that that was the case and right to insist on that clarity. As the noble Baroness, Lady Carnegy of Lour, pointed out, the Bill now places a duty on the Secretary of State to have regard to the aims in ensuring the provision of probation services. That is exactly why that part of the Bill is there.

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The noble Baroness, Lady Anelay, stole my thunder, because I was going to quote back to your Lordships’ House the words of the Member for Harborough, Edward Garnier, in confirming the Opposition’s view. I rather agree with the noble Baroness that applauding an amendment is a novel practice in Parliament and might be considered by some to be a bit over the top. Nevertheless, Edward Garnier made his position very clear and we are grateful to him for that.

As the noble Baroness, Lady Stern, picked out, the aims replicate the aims that currently apply to probation by virtue of Section 2 of the Criminal Justice and Court Services Act 2000. The noble Baroness is entirely consistent: she did not like it then and she does not like it today. They are intended to define the core outcomes and the core work of probation. Of course, no list is ever perfect or complete, but the aims are very easily understood and have served their purpose well. When they were added to the Bill in the other place, there was no suggestion that it would be useful as a task to reopen them at this stage.

More fundamentally, it would be most unusual if the aims of the Probation Service, one of the linchpins of the criminal justice system, did not, as the amendment suggests, include the proper punishment of offenders. After all, society asks that those who have committed an offence should, as many noble Lords said during the debate, be properly punished. That is a well established concept. It has been set out in statute in the current probation aims going back to 2000 and as part of the purposes of sentencing in the Criminal Justice Act 2003.

The concept of punishment fits into a wider context. Society also expects to be protected and expects offenders to be rehabilitated in order to reduce the likelihood that they will reoffend. That is why that is also included in the aims and in the purposes of sentencing. The aims reflect what society expects the criminal justice system to achieve and it is entirely right that probation providers should have regard to them when working to deliver the sentences passed by the courts.

I also point out that the amendment is technically inaccurate. The enforcement of court orders is, as I am sure the noble Lord, Lord Ramsbotham, will understand, a function, not an aim. Indeed, the enforcement could play just as important a part in the protection of the public or in the rehabilitation of offenders as it could in the proper punishment of offenders, depending on the requirements of the order.

I am grateful for what noble Lords have said in the debate. I hope that, having heard my very simple and straightforward reply, they will think again about whether they should push the amendment to a vote. We cannot agree with it, because it runs counter to all that we seek to achieve in the Bill and in earlier legislation.

Lord Ramsbotham: My Lords, I thank the Minister for that reply. I am sorry that he thinks that something so fundamental should run counter to the

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Bill. In fact, that is the total opposite of its intention. I am trying neither to weaken the provision nor to strengthen it, as the noble Lord, Lord Warner, suggested; I am trying to explain the purpose of my amendment and to make it absolutely crystal clear who does what in the criminal justice system. I assure the right reverend Prelate the Bishop of Liverpool and the noble Lord, Lord Warner, that I am neither squeamish nor apprehensive about punishment, and never have been. I have, however, always been one of those who believe that punishment should be given by those who are responsible for giving it, and it should be absolutely crystal clear who those people are.

I should say to the noble Baroness, Lady Carnegy of Lour, that I based my amendment on the title of the clause, which is about the provision of probation services. That phrase is reflected in two other subsections, which refer to what the Secretary of State has to do in exercising his functions in relation to any “probation provision” by making and carrying out arrangements. I think that the noble Lords, Lord Rosser and Lord Warner, were talking about the aims of courts, not about the aims of probation. That is absolutely right: the aims of courts are the sentences. That is their job, but that is not the aim of the Probation Service. I am extremely grateful to my noble friend Lady Warnock for explaining so clearly the distinction between those two and for saying that the words do matter.

I always listen with great respect to what the noble Lord, Lord Judd, says. I agree with him, as did other noble Lords, that there is precious little between implementation and enforcement. I came down in favour of enforcement here, because the word was used in our previous debate. If, as a result of what we decree this afternoon, this matter is taken away to be considered for further processing in the Bill, as I hope, I would not object one bit if the word “implementation” were substituted.

However, the explanations of punishment that have been given do not stand up. They do not reflect the difference between the job of the courts and the job of probation. If the word “punishment” is related to the Probation Service, it does not help the service to do its work or people to understand what it does. Therefore, I wish to test the opinion of the House.

5.08 pm

On Question, Whether the said amendment (No. 3) shall be agreed to?

*Their Lordships divided: Contents, 77; Not-Contents, 140.

Division No. 2


Addington, L.
Alton of Liverpool, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Brookeborough, V.
Burnett, L.
Colville of Culross, V.
Cotter, L.
Craigavon, V.

27 Jun 2007 : Column 624

Crisp, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Falkland, V.
Glasgow, E.
Goodhart, L.
Greaves, L.
Greengross, B.
Hamwee, B.
Harris of Richmond, B. [Teller]
Hooson, L.
Howe of Idlicote, B.
Hylton, L.
Joffe, L.
Jones of Cheltenham, L.
Judd, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, Bp.
Livsey of Talgarth, L.
Low of Dalston, L.
Luce, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Montgomery of Alamein, V.
Neuberger, B.
Newby, L.
Northbourne, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Patel of Bradford, L.
Ramsbotham, L. [Teller]
Razzall, L.
Redesdale, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Slynn of Hadley, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Swinfen, L.
Teverson, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Vallance of Tummel, L.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Williams of Crosby, B.
Williamson of Horton, L.
Wright of Richmond, L.


Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bilston, L.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grantchester, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.

27 Jun 2007 : Column 625

Jones of Whitchurch, B.
Jordan, L.
Kerr of Kinlochard, L.
Kirkhill, L.
Krebs, L.
Laming, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Mawhinney, L.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Norton of Louth, L.
Ouseley, L.
Patel of Blackburn, L.
Pendry, L.
Prys-Davies, L.
Quin, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Renton of Mount Harry, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Smith of Finsbury, L.
Stoddart of Swindon, L.
Strabolgi, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Truscott, L.
Uddin, B.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.

[*See col. 648]

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